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Navigating BEAD’s Environmental and Historical Permitting Requirements: What States Need to Know

As states prepare their Final Proposals for the Broadband Equity, Access, and Deployment (BEAD) Program, they face a heavy requirement: ensuring applicants have provided enough information regarding the potential environmental impacts of their broadband projects before construction begins.

The National Telecommunications and Information Administration (NTIA) recently released new guidance on how states and applicants can prepare for the BEAD Program’s Environmental and Historical Permitting (EHP) requirements, including compliance with the National Environmental Policy Act (NEPA) and the National Historic Preservation Act (NHPA).

Despite these guidelines offering useful best practices and reference materials, they do not offer clear guidelines that will ensure EHP compliance. More importantly, they haven’t explained how the EHP process will impact the timing of approvals for BEAD Final Proposals, as it was noted during a recent multi-agency event in Arizona that the agency tasked with BEAD EHP reviews is severely understaffed. This additional uncertainty leaves states and applicants grappling with how to ensure EHP compliance and finalize BEAD Final Proposals efficiently.

To help BEAD applicants better understand NTIA’s EHP framework, Tilson’s Broadband Consulting team has developed a brief outline of what the NTIA guidance document includes, how states can act today on their BEAD programs, and how applicants can plan for EHP requirements. The BEAD program requires that states gather and review EHP information from each grant project and send all required information to the NTIA. States must use this framework to integrate EHP details into their application requirements, award agreements, and post-award compliance practices. By following the suggestions below, states can better position themselves to satisfy NTIA’s requirements more quickly and build successful broadband networks.

What Is and Is Not in the NTIA’s EHP Guidance

While the current NTIA guidance does not include a list of required rules and review processes for EHP requirements, it does specify that all proposed projects address potential impacts to what it refers to as “resource areas.”

NTIA provides general best practices for these resource areas and states that applicants must follow “all applicable federal, state, and local requirements” for each. These resource areas include:

• All rights of way, including roads and utilities
• Soil and geology
• Water resources, including wetlands and floodplains
• Biological resources, including vegetations, endangered and non-endangered wildlife, and aquatic habitats
• Land use, including recreation, airspace, and cultural or archaeological sites
• Human factors, including air quality, noise and vibration pollution, health and safety, and environmental justice
• Climate change

NTIA also provides lists of  best practices and mitigation measures for each of the above resource areas that identifies how these best practices specifically apply to projects deploying to each wireline, wireless, or satellite technologies. Nevertheless, the guidance document explains that states must still identify and implement additional rules “necessary for compliance with NEPA and other applicable laws, regulations, statutes, and executive orders.”  

While we wait for additional guidance from NTIA, states should look closely at how other broadband deployment grant programs, such as the USDA’s ReConnect program, have complied with EHP requirements. These programs have clarified and expanded the use of categorical exclusions to streamline the environmental monitoring process and have provided detailed documentation demonstrating a means of collecting EHP information on a project basis. The NTIA has previously released guidance on categorical exclusions and provided a presentation about its general approach to categorical exclusions. Combined with prior grant program guidelines, these resources can help states to better understand what information must be collected to satisfy EHP requirements when projects are unlikely to have a notable impact.

How to Use the NTIA’s EHP Guidance

While we don’t yet know what processes NTIA will use to review EHP requirements, states can still use NTIA’s framework of best practices to provide the following:

• Checklist of issues that a state broadband office must consider (see the list of “resource areas”) and each related best practice. Applicable laws should be researched for each issue while crafting grant agreement requirements.
• Source of rules language to use when writing the above requirements into a BEAD application.
• Reporting framework to organize and group details about EHP rules for the final proposal or any reporting updates requested from the NTIA.

We recommend states consider infusing as much of the NTIA’s best practices as possible into the main round application, including:

• Developing EHP Rules and Requirements: State broadband offices must research EHP requirements in NEPA, NHPA, and other federal and state laws covering broadband construction projects and develop their EHP application requirements accordingly. The NTIA’s EHP guidance framework can organize these efforts by each resource area. States can identify which best practices are required and adapt the language used in the guidance to meet their compliance requirements in the grant application.
• Gathering EHP Info from Applications: State broadband offices should collect EHP information required by their NTIA guidance-developed rules in a suitable format from each application. These rules can then be presented as part of the BEAD Final Proposal. States can also integrate selected portions of the best practices language provided by NTIA as requirements that applicants must accept if awarded, instead of crafting these requirements themselves.
• Reporting EHP Rules and Project Details: In the Final Proposal,the NTIA will require that states provide information about the EHP issues raised in each proposed project for award, what the awardee has agreed to do to comply with EHP requirements, and how those efforts will be monitored by the state. The NTIA team, as part of the approval of the Final Proposal, will review and include conditions of award based on the information provided as part of its Decision Document. The NTIA’s EHP guidance offers an excellent starting framework to organize EHP rules reporting by resource area and project type, before the NTIA releases more information about its reporting requirements. State broadband offices must enforce the ongoing EHP monitoring and compliance requirements in each project’s grant agreement and report updates to the NTIA.

Start Early: Ensure BEAD Compliance and Avoid Delays with Support from Tilson

It is critical to begin planning your program and application early to meet Environmental and Historical Permitting (EHP) requirements and prevent potential delays.

Tilson’s consulting team has extensive experience in navigating both federal and state BEAD compliance requirements and offers comprehensive support to help your team address EHP compliance reviews, assist review needs, support applicants, and achieve BEAD objectives. 

Learn more about our services or contact us to discuss your specific broadband connectivity goals.

“With our knowledge and history designing state and federal grant proposals, including for the BEAD program, Tilson’s Broadband Consulting team helps clients make sense of the requirements and secure funding for their communities.” Heather Mills, Tilson Principal Consultant